93 Decision Citation: BVA 93-02710
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-24 208 ) DATE
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THE ISSUES
1. Entitlement to service connection for a low back
disorder.
2. Entitlement to service connection for tonsillar
hypertrophy.
3. Entitlement to service connection for a chronic
cardiovascular disorder manifested by chest pain.
REPRESENTATION
Appellant represented by: Non-Commissioned Officers
Association
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from decisions of the Department of
Veterans Affairs (VA) Regional Office in St. Petersburg,
Florida (RO). The veteran had active service from March
1969 to May 1989.
An October 1989 rating decision denied the benefits sought
on appeal. A notice of disagreement was received in January
1990, and a statement of the case was issued in April 1990.
A VA Form 1-9 (Appeal to Board of Veterans' Appeals) was
received in May 1990. The RO certified the issues on appeal
and the case was received at the BVA in June 1990. The case
was referred to the veteran's representative at that time,
The American Legion, and additional written argument was
presented to the Board in October 1990.
By a decision dated in December 1990, the BVA remanded this
case for further development. In March 1991, the RO
promulgated a rating decision which continued to deny the
benefits sought on appeal and issued a supplemental
statement of the case. The RO recertified the issues on
appeal and the case was again received at the BVA in May
1991. The veteran's representative presented further
written argument to the Board in September 1991. The Board
again remanded this case in November 1991 for further
development. Following accomplishment of the requested
development in April 1992, the RO promulgated a rating
decision which continued to deny the benefits sought on
appeal and issued a supplemental statement of the case. The
RO recertified the issues on appeal in July 1992, and the
case was again received at the BVA in August 1992. The
veteran's representative presented further written argument
to the Board in October 1992. In September 1992 the veteran
requested a change of representation. A VA form 23-22
(Appointment of Veteran's Service Organization as Claimant's
Representative) in favor of the Non-Commissioned Officers
Association was received in November 1992. That
organization was afforded an opportunity to review the
veteran's file, and a written statement was received by the
Board in December 1992. The case is now ready for appellate
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect
in not granting the benefits sought on appeal. He
maintains, in substance, that the disorders at issue on
appeal all had their onset during service, and therefore,
should be recognized as service-connected disabilities. He
reports that service medical records document these
conditions and that he has received treatment following his
separation from service. Therefore, a favorable
determination has been requested.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), it is the decision of the Board, following
review of all evidence in the claims file, that the evidence
does support the claim for service connection for a low back
disorder, but does not support the claims for service
connection for tonsillar hypertrophy or a chronic
cardiovascular disorder manifested by chest pain.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran was seen during service for complaints of
low back pain.
3. A chronic low back disorder has been identified
following service.
4. Tonsillar hypertrophy has not caused or produced an
ascertainable or identifiable disability.
5. The veteran was seen for complaints of chest pain during
service without any cardiovascular disease being identified
or diagnosed.
6. Cardiovascular disease has not been diagnosed following
service.
CONCLUSIONS OF LAW
1. A low back disorder was incurred in active service. 38
U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303
(1991).
2. Tonsillar hypertrophy was not incurred in or aggravated
by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
1991); 38 C.F.R. § 3.303 (1991).
3. A chronic cardiovascular disease manifested by chest
pain was not incurred in or aggravated by active service,
nor may cardiovascular disease be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131,
1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309
(1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As a preliminary matter, we find that the veteran's claims
are "well grounded" within the meaning of 38 U.S.C.A.
§ 5107(a) (West 1991). Gilbert v. Derwinski, 1 Vet.App. 49
(1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990). That is,
we find that he has presented claims which are not
implausible when his contentions and the evidence of record
are viewed in the light most favorable to those claims. We
are also satisfied that all relevant facts have been
properly and sufficiently developed.
I. Low Back Disorder
The veteran's service medical records show that he was seen
for complaints of low back pain during service, and at one
point was placed on a temporary physical profile due to
those complaints. In particular, the veteran was seen for
complaints of low back pain following a motor vehicle
accident he was involved in, in March 1985, and on two
subsequent occasions in November 1987 and January 1989, the
last of which resulted in the veteran being placed on a
temporary physical profile. The November 1987 instance was
precipitated by standing from a sitting position and was
diagnosed as a muscle spasm and the January 1989 instance
had no apparent precipitating cause and was diagnosed as
mechanical low back pain. While the veteran was apparently
not on a physical profile for his low back at the time of
his March 1989 retirement physical examination, he did
report that he experienced recurrent back pain which "comes
and goes" and had experienced such pain for the past
15 years.
While a VA examination of the veteran's back in September
1989 revealed no abnormal objective findings which reflected
the presence of a low back disorder, the examination report
did contain a history from the veteran that he experienced
"some discomfort a couple of times a month." The more
recent January 1991 VA examination revealed the presence of
generalized tenderness in the mid to upper lumbar region
which was worse on the right than the left and some slight
limitation of back motion. The examiner's assessment was
that the veteran continued to have musculoskeletal low back
pain, but there was no evidence of bony abnormalities. We
find it noteworthy that the examiner recommended that the
veteran receive routine physical therapy designed
specifically to strengthen his back musculature.
We are of the opinion that this evidence demonstrates that
the veteran had the onset of a chronic lumbosacral strain
during service, albeit intermittent, and that the veteran
has continued to experience symptomatology reflective of a
lumbosacral strain following his separation from service.
Accordingly, we conclude that service connection for a
lumbosacral strain has been established.
II. Tonsillar Hypertrophy
The veteran's service medical records do reflect findings of
tonsillar hypertrophy or enlargement during service which
was also reported upon examination by the VA in September
1989. However, it is not clear or apparent that tonsillar
enlargement represents a disorder or disability. We note
that when service medical records reported findings of
enlarged tonsils, it was generally in connection with an
upper respiratory infection or other acute disease process.
At the time of the September 1989 VA examination, the
veteran reported that his tonsils kept him from breathing
adequately at times. Examination disclosed the nasal airway
was patent, the oral cavity was clear and the throat was
normal. The examiner indicated that the tonsils were
somewhat hypertrophic, but appeared to be a normal type of
tissue. Since there is no disability shown to be associated
with the veteran's enlarged tonsils, we see no basis for an
allowance of service connection. "Congress specifically
limits entitlement for service-connected disease or injury
to cases where such incidents have resulted in a
disability. See 38 U.S.C. § 1110 (formerly § 310). In the
absence of proof of a present disability, there can be no
valid claim. Our perusal of the record in this case shows
no claim of or proof of present disability." Brammer v.
Derwinski, Vet.App. No. 91-476, Slip op. at 3 (U.S.
Vet. App. September 3, 1992) (citing Rabideau v. Derwinski,
2 Vet.App. 141, 143-44 (1992)).
III. Cardiovascular Disease
The veteran's service medical records clearly show that he
was evaluated for complaints of chest pain during service
and that an electrocardiogram was interpreted as being
abnormal. However, further testing and evaluation during
service revealed no evidence of cardiovascular disease to
account for the veteran's complaints of chest pain.
Similarly, examinations and testing by the VA following
service have failed to identify or diagnose the veteran as
having a cardiovascular disorder as an etiology for his
chest pain. A VA examination performed in September 1989
concluded with a pertinent impression of "history of chest
pain, apparently of noncardiac origin." A further
evaluation by a VA cardiologist, including diagnostic
testing, resulted in a final impression of noncardiac chest
pain with no evidence of coronary artery disease.
Therefore, as with the veteran's claim for service
connection for tonsillar hypertrophy, "[i]n the absence of
proof of a present disability there can be no valid claim."
Id. Therefore, service connection for chronic
cardiovascular disease manifest by chest pain is not
established.
ORDER
Service connection for a low back disorder is granted.
Service connection for tonsillar hypertrophy is denied.
Service connection for a chronic cardiovascular disorder
manifested by chest pain is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
WARREN W. RICE, JR. ROBERT D. PHILIPP
*
(MEMBER TEMPORARILY ABSENT)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.